Annual Wage Review 2015–16 decisio - [2016] FWCFB 5047

[2016] FWCFB 5047

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.285—Annual wage review

(C2016/1)

JUSTICE ROSS, PRESIDENT
SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT ASBURY
COMMISSIONER HAMPTON
MR COLE
PROFESSOR RICHARDSON
MR GIBBS

MELBOURNE, 26 JULY 2016

[1] On 31 May 2016, the Expert Panel (the Panel) delivered the Annual Wage Review 2015–16 decision (the Decision).

[2] Correspondence dated 24 June 2016 was received from the Australian Catholic Council for Employment Relations (ACCER) which sought to draw to the attention of the Panel an error in Table 5.7 at paragraph [436] of the Decision. That error was the use of incorrect figures for poverty lines for December 2010. ACCER’s letter asserts that a significant factor in the Decision was based on this erroneous data. That significant factor was said to be:

‘the Panel’s “overall assessment … that the relative living standards of NMW and award-reliant employees have improved a little over recent years, although the relative position of low-paid workers has deteriorated over the past decade. Many have low levels of income” (paragraphs 67, 98 and 436 refer).’

[3] ACCER’s letter requests that the figures in Table 5.7 and associated paragraphs are corrected by the Panel issuing an amended or supplementary decision.

[4] ACCER’s letter was published on the Commission’s website on 28 June 2016 and interested parties were invited to make comment on this matter by 6 July 2016. No comments were received.

[5] A separate letter from ACCER in relation to the error in Table 5.7, also dated 24 June 2016, was published on the Commission’s website on 8 July 2016 and interested parties were invited to comment by 13 July 2016. On 10 July 2016, ACCER sent a further letter to the Commission dated 8 July 2016 recalling the letter published on 8 July 2016 on the basis that it had been sent in error. The recalled letter was subsequently removed from the Commission’s website. The Australian Chamber of Commerce and Industry (ACCI) was the only party to comment on the recalled letter. Amongst other comments, ACCI expressed the view that there is no power in the Fair Work Act 2009 (Cth) (the Act) to reopen the matter in the manner sought.

[6] It is desirable to correct the public record and we express our appreciation to ACCER for drawing the matter to our attention. The Panel is informed by Commission staff that there was an error in the calculation of the figures for the December 2010 poverty lines in Table 5.7 of the Decision. As a result, the December 2010 ratios to disposable income in Table 5.7 are also incorrect, as is the description in paragraph [436] of the change in disposable income from December 2010 to December 2015 as shown by Table 5.7. Commission staff have advised that the December 2010 poverty lines were calculated with a median equivalised disposable household income figure from the ABS Household Income and Wealth catalogue for 2009–10 that was inflated to 2013–14 dollars by the Consumer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWCFB 5047
Decision Date: 26 JULY 2016

CaseChat Overview and Summary

The Australian Catholic Council for Employment Relations (ACCER) brought to the attention of the Expert Panel an error in the Annual Wage Review 2015–16 decision, specifically in Table 5.7 where the figures for poverty lines for December 2010 were incorrectly calculated. This error was brought to the attention of the Fair Work Commission, which oversees the Panel. The Commission acknowledged the error and provided a corrected table and description of the change in disposable income. ACCER had requested the Panel issue an amended or supplementary decision to correct the error, but the Panel concluded that it was not open to the Panel to correct the error in the published Table under the slip rule, nor to issue any amended or supplementary decision.

The legal issue before the Panel was whether it had the power to correct an obvious error in the Annual Wage Review decision and, if so, whether it was appropriate to do so. The Panel noted that while it might be open to an Expert Panel to correct an obvious error in relation to an Annual Wage Review decision pursuant to section 602 of the Fair Work Act 2009 (Cth), it is not otherwise open to vary such a decision. The Explanatory Memorandum to the Fair Work Bill 2008 states that section 602 "is intended to be a statutory analogue of the ‘slip rule’ used by superior courts".

The Panel observed that it had regard to a range of factors in reaching its "overall assessment … that the relative living standards of NMW and award-reliant employees have improved a little over recent years, although the relative position of low-paid workers has deteriorated over the past decade." Further, for reasons outlined above, it would not be appropriate to correct the error in the published Table under the slip rule. Nor would it be open to the Panel to issue any amended or supplementary decision even if the Panel had been minded to do so.

The Fair Work Commission acknowledged the error in the Annual Wage Review 2015–16 decision and provided a corrected table and description of the change in disposable income. The Panel concluded that it was not open to the Panel to correct the error in the published Table under the slip rule, nor to issue any amended or supplementary decision. The Panel observed that it had regard to a range of factors in reaching its overall assessment and that it would not be appropriate to correct the error in the published Table under the slip rule.

Orders